VILLAZOR - READY TO PUBLISH 04/02/18 – 10:33 PM VOLUME 131 APRIL 2018 NUMBER 6 H A R V A R D L A W R E V I E W F O R U M © 2018 by The Harvard Law Review Association U.S. TERRITORIES COMMENTARY SERIES PROBLEMATIZING THE PROTECTION OF CULTURE AND THE INSULAR CASES Rose Cuison Villazor∗ INTRODUCTION n September 28, 2017, the U.S. Department of Justice filed a lawsuit Oagainst the government of Guam claiming that it engaged in racial and national origin discrimination in violation of the Fair Housing Act.1 According to the complaint in United States v. Guam,2 a local govern- ment agency, the Chamorro Land Trust Commission (Commission), lim- its eligibility to “native Chamorros” (the indigenous peoples of Guam),3 for a local housing program created under Chamorro Land Trust Act (CLTA or Act).4 In particular, the federal government is challenging the Commission’s implementation of the CLTA, claiming that the agency discriminates against non-Chamorros by denying them the ability to lease lands and obtain other benefits under the Act.5 The federal gov- ernment cited, for example, an African American man who lost the home that he built with his Chamorro wife after she passed away.6 The ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law, University of California, Davis, School of Law. I am grateful to Ernesto Hernández-López, Kevin Maillard, Christina Duffy Ponsa-Kraus, Gretchen Smith, and Neil Weare for helpful comments to previous versions of this Commentary. I also thank the editors of the Harvard Law Review for their excellent editorial assistance. All errors are my own. 1 42 U.S.C. §§ 3601–3619 (1968); Press Release, U.S. Dep’t of Justice, Justice Department Sues Guam’s Government for Racial and National Origin Discrimination in Violation of the Fair Housing Act (Sept. 28, 2017), https://www.justice.gov/opa/pr/justice-department-sues-guam-s-government- racial-and-national-origin-discrimination-violation [https://perma.cc/2Y8F-4PRL]. 2 No. 17-00113 (D. Guam filed Sept. 29, 2017). 3 Complaint at 4–6, United States v. Guam, No. 17-00113 (D. Guam filed Sept. 29, 2017), https://www.justice.gov/opa/press-release/file/999936/download [https://perma.cc/997M-PFM8] (ex- plaining the history of the passage of the Chamorro Land Trust Act and creation of the Chamorro Land Trust Commission). 4 See id. at 4–5; 21 GUAM CODE ANN. § 75107(a) (2017). 5 See Complaint, supra note 3, at 2. 6 Id. at 9. 127 VILLAZOR - READY TO PUBLISH 04/02/18 – 10:33 PM 128 HARVARD LAW REVIEW FORUM [Vol. 131:127 wife had obtained a lease on the land, and the couple built a three- bedroom home.7 After she died, however, the Commission evicted the husband from the property because, as a non-Chamorro, he lacked eli- gibility to reside there.8 Local elected leaders in Guam vowed to defend the CLTA, highlight- ing the law’s intent to protect indigenous peoples’ rights. Governor Eddie Calvo, for example, noted that the CLTA is needed to “allow the native inhabitants of this land the opportunity to build a home and live on their native land.”9 The Attorney General of Guam argued that the Act “is intended to preserve Chamorro heritage and Chamorro culture.”10 As the forgoing evidences, United States v. Guam highlights a con- flict between an individual’s right to be free from race discrimination and the indigenous group’s claim for the protection of their lands and cultural rights.11 It is the most recent case from a line of cases out of Guam and its neighboring islands, the Commonwealth of the Northern Mariana Islands (CNMI), also a U.S. territory, that underscores the ten- sion between the rights of its native inhabitants and nonindigenous in- dividuals who also call these islands their home.12 As with the foregoing cases, a federal court would once again need to examine where the rights of indigenous peoples in the U.S. territories fit within the broader prin- ciples of equal protection and individual rights that are guaranteed un- der federal statutes and the U.S. Constitution. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 7 Id. 8 Id.; see also Steve Limtiaco, Feds Sue Chamorro Land Trust, Saying It Discriminates, PAC. DAILY NEWS (Sept. 29, 2017, 9:58 AM), http://www.guampdn.com/story/news/2017/09/29/feds-sue- chamorro-land-trust-saying-discriminates/715242001/ [https://perma.cc/G3QG-XMZN]. 9 Mar-Vic Cagurangan, Feds Sue Guam Over Chamorro Land Restrictions, PAC. ISLAND TIMES (Sept. 29, 2017), http://www.pacificislandtimes.com/single-post/2017/09/30/Feds-sue-Guam- over-Chamorro-land-restrictions [https://perma.cc/GAE8-N9TL]. 10 Jasmine Stole, AG Ready to Defend Chamorro Land Trust Act Against Federal Challenge, PAC. DAILY NEWS (Oct. 10, 2017, 3:15 PM), http://www.guampdn.com/story/news/2017/10/10/ag- ready-defend-chamorro-land-trust-act-against-federal-challenge/745156001/ [https://perma.cc/H9RX- S3S3]. 11 See, e.g., Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990); Craddick v. Territorial Registrar, 1 Am. Samoa 2d 11 (1980); see also Davis v. Commonwealth Election Comm’n, 844 F. 3d 1087 (9th Cir. 2016) (implicating, though not directly addressing, the Commonwealth of the Northern Mariana Islands’ (CNMI) land alienation law embodied in Article XII of the CNMI Constitution). Such cultural claims have been raised mainly in American Samoa, Guam, and the CNMI, the smaller and arguably lesser-known territories when compared to Puerto Rico and the U.S. Virgin Islands. These questions, of course, are not new and have been raised by American Indian tribes and Native Hawaiians. Yet the issue of the protection of cultural rights, particularly regarding cultural claims to indigenous lands, has been addressed differently in the U.S. territories than in the “mainland.” 12 See, e.g., Davis, 844 F.3d 1087; Davis v. Guam, 785 F. 3d 1311 (9th Cir. 2015); Wabol, 958 F.2d 1450. I do not mean to suggest that everyone in Guam, or the CNMI for that matter, agrees that all indigenous peoples consider their rights to be in tension with the rights of nonindigenous peoples residing in these territories. The intragroup conflicts regarding what rights indigenous peoples should have raise normative and process questions that are beyond the scope of this Commentary. VILLAZOR - READY TO PUBLISH 04/02/18 – 10:33 PM 2018] PROBLEMATIZING THE PROTECTION OF CULTURE 129 Determining how to resolve the tension between these two seemingly competing rights in the U.S. territorial context is not easy.13 Both im- plicate compelling claims that raise equality and social justice issues. On the one hand, the history of race discrimination underscores the im- portance of using equal protection principles to shield individuals against government oppression in property.14 On the other hand, the ongoing efforts to decolonize the U.S. territories and address the harms of imperialism demonstrate the need to protect the rights of indigenous groups.15 Chapter Three of the Developments in the Law16 provides the most recent exploration of this conflict between laws protective of indigenous peoples’ cultural rights and equal protection principles as it manifests in the U.S. territories.17 In particular, Chapter Three examines the ex- tent to which the Insular Cases have addressed the legal debate between an individual constitutional right and an indigenous group’s claim that implicates cultural rights. Importantly, the chapter contends that the ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 13 Legal scholars have explored the conflict between individual rights and the rights of indige- nous peoples in the United States in other contexts. See, e.g., Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 CALIF. L. REV. 799 (2007) (discussing the tension between tribal sovereignty and the individual rights that may be compromised without the protections of federal civil rights laws); Rebecca Tsosie, Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit Within Civil Society?, 5 U. PA. J. CONST. L. 357 (2003) (examining the tension between Native American tribalism and constitutionalism in contemporary Indian law jurisprudence); Eric Yamamoto & Catherine C. Betts, Disfiguring Civil Rights to Deny Indigenous Hawaiian Self- Determination: The Story of Rice v. Cayetano, in RACE LAW STORIES 541 (Rachel F. Moran & Devon Wayne Carbado eds., 2008) (describing the legal struggles for redress of Native Hawaiians as a result of colonial expansionism). 14 Rose Cuison Villazor, Rediscovering Oyama v. California: At the Intersection of Property, Race, and Citizenship, 87 WASH. U. L. REV. 979, 1009–11 (2010) (discussing history of race discrim- ination in property law). For an in-depth examination of racial exclusion in property law, see ALFRED BROPHY, ALBERTO LOPEZ & KALI MURRAY, INTEGRATING SPACES: PROPERTY LAW AND RACE (2011). 15 See, e.g., Julian Aguon, On Loving the Maps Our Hands Cannot Hold: Self-Determination of Colonized and Indigenous Peoples in International Law, 16 ASIAN PAC. AM. L.J. 47 (2011) (dis- cussing how international law can be used as the basis for advocating for and maintaining indige- nous rights); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197 (1991) (acknowledging the difficulties of building coalitions between Hawaiians and non-Hawaiians and recognizing the need for non-Hawaiians to understand the effects of white cul- tural imperialism in Hawaiʻi). 16 Developments in the Law — The U.S. Territories, 130 HARV. L. REV. 1616, 1680 (2017) [here- inafter Developments]. 17 Scholars have explored this conflict in the context of the CNMI and American Samoa previ- ously. See, e.g., Marybeth Herald, Does the Constitution Follow the Flag into United States Terri- tories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST.